CT Tort and Insurance Law Update -- Monthly Update

2013-04-03 | Kathryn M. Cunningham
kmcunningham@jacksonokeefe.com

Category: Insurance

Kathryn M. Cunningham

Welcome to the Jackson O’Keefe monthly Tort and Insurance Law Update. We hope that this service will help keep you abreast of significant appellate and trial court level decisions in Connecticut on these issues. Please feel free to forward this email to your colleagues. We welcome requests to be added to our email list. Once again, we hope that you find this information useful. In this issue: 1. Insurance Coverage Law—Supreme Court restricts the scope of “arising out of” coverage provisions 2. Torts – Family car doctrine applies to nonfamily member operating vehicle with permission of family member 3. Torts – Superior Court concludes that bystander emotional distress claim does not require physical presence at the scene of the injury 4. Agency Decision – CHRO concludes that volunteer firefighter is not employee for purposes of antidiscrimination statutes 1. Insurance Coverage Law—Supreme Court restricts the scope of “arising out of” coverage provisions: In Misiti, LLC v. Travelers Property Cas. Co. of America, 308 Conn. 146 (March 26, 2013), the Supreme Court affirmed the Appellate Court’s conclusion that the required causal connection between the accident and the covered cause of loss was lacking, and therefore found no duty to defend. The issue was whether the alleged fall down “arose out of” the ownership, maintenance, or use premises demised to the named insured; if so, the lessor would qualify as an additional insured. The Court rejected mere a incidental or a non-causal connection, requiring causation. 308 Conn. at 161-63. “In determining whether the facts of the underlying complaint give rise to a duty to defend, our case law instructs that there is a limit to what may constitute an adequate causal connection.” 308 Conn. at 163. In footnote 11, the Court stated: The dissent asserts that our analysis, which focuses solely on the facts alleged in the complaint, is overly narrow. Instead, the dissent would consider certain extrinsic facts as set forth in the parties' stipulation, maintaining that “facts outside of the complaint that were known by [Travelers] ... suggest that the claim falls within the scope of coverage....” Such facts, in the dissent's view, include the following: (1) “prior to sustaining her injuries, Middeleer ‘ate food and drank wine at the tavern’ with her supervisor”; (2) they “walked down a path toward the parking area ... [and] as the two approached the parking area, they did not take the branch of the path that led directly to where the car was parked, but instead they continued to walk along the river in a park like area located next to the tavern in order to look at the river and a waterfall”; and (3) “Middeleer was injured after the wood fence that was located on the top of the riverbank collapsed, causing her to fall.” According to the dissent, if we had considered such facts, we would have determined that “there clearly [was] an allegation tying [Middeleer's injuries] to the particular premises leased to the tavern.” We disagree. Even if we assume that these facts were appropriately before us, such facts would not alter our analysis because they do not establish a causal nexus between Middeleer's injuries and the use of the tavern's premises. We are therefore unpersuaded that such facts support coverage. See Hartford Casualty Ins. Co. v. Litchfield Mutual Fire Ins. Co., supra, 274 Conn. at 466–67, 876 A.2d 1139. At most, as the Appellate Court reasoned, such facts suggest that Middeleer's injuries and the use of the tavern occurred in sequence, which is insufficient to establish the requisite causal connection. Thus, even if we were to consider the facts highlighted by the dissent, in addition to our analysis of the complaint in the underlying action, we could not conclude that Middeleer's injuries arose out of the use of the leased premises under these circumstances. 308 Conn. 180 n. 11. For full text of the decision see: this link 2. Torts – Family car doctrine applies to nonfamily member operating vehicle with permission of family member: The owner of a family car is responsible for damages caused by him nonfamily member operating the vehicle when the vehicle is being used by a permissive user of a family member, and the family member is a passenger in the vehicle. The family member in the vehicle must have the general, unrestricted authority to use the vehicle for his or her own pleasure inconvenience. “The liability of a vehicle owner under the family car doctrine encompasses liability for the negligent operation of a family car by a nonfamily member third party operator if a covered family member with general, unrestricted authority to use the vehicle for his or her own pleasure and convenience was a passenger in the vehicle and the third party was operating the family car with the consent of that family member. In such cases, the negligent third party steps into the shoes of the family member for the purpose of applying the family car doctrine to the owner of the vehicle.” Cima v. Sciaretta, 140 Conn. App. 167, 177 (2013). For full text of the decision see this link 3. Torts – Superior Court concludes that bystander emotional distress claim does not require physical presence at the scene of the injury: In this personal injury action, defendants moved to strike the plaintiff mother’s claim for bystander emotional distress predicated on allegations that she was talking on the cell phone with her daughter when the daughter was involved in a motor vehicle accident. The daughter, also a plaintiff, had contacted her mother by cell phone when her vehicle became disabled while she was driving on the highway; she was involved in an accident when the defendant driver allegedly struck the rear of her vehicle. The defendants argued that the bystander emotional distress claim failed because the mother was not physically present at the scene of the accident, so that she could not satisfy the contemporaneous sensory perception element required under the Clohessy v. Bachelor, 257 Conn. 31 (1996) to state a claim for bystander emotional distress. The trial court (Graham, J.), denies the motion, concluding that Clohessy does not require that a claimant be physically present, that the mother’s perception of the incident by way of the cell phone was both contemporaneous and sensory, and that “in this day and age, it is reasonably foreseeable that the driver of a disabled vehicle on the interstate will be on a cell phone to a loved one”. McCauliff v. Sharif, 2013 WL 1189309 (Conn. Super.). 4. Agency Decision – CHRO concludes that volunteer firefighter is not employee for purposes of antidiscrimination statutes: The complainant’s minor daughter was a volunteer firefighter with the Echo Hose Company. On behalf of her minor daughter, complainant filed a discrimination and retaliation Complaint predicated on Title VII and the Connecticut Fair Employment Practices Act (CFEPA) against the company and the City of Shelton. The City moved to strike the complaint on the basis that the complainant was not an “employee” within the meaning of either statute. The commissioner grants the motion. Both statutes define the term “employee” the same way. The commissioner rejects the complainant’s argument that the common law “right to control” test applies and that her discrimination complaint alleges sufficient facts to establish her status as an employee under that test. The commissioner applies the test articulated by the Second Circuit in Pietras v. Bd. of Fire Comm’rs of the Farmingville Fire Dist., 180 F.3d 468, 473 (2d Cir. 1999), wherein the court found that “an employment relationship within the scope of [the statutes alleged] can exist even when the putative employee receives no salary so long as he or she gets numerous job-related benefits,” and that “the question of whether someone is or is not an employee under [these statutes] turns on whether he or she has received direct or indirect remuneration from the alleged employer.” The commissioner concludes that training, education, experience, equipment and eligibility for other … positions” does not amount to direct or indirect remuneration and are not salary substitutes sufficient to confer employment status on the complainant recipient. The motion to strike is granted. CHRO v Echo Hose Ambulance and City of Shelton, CHRO no. 1130518 ( 1/10/13).

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